Van Duren v Chandler Marine Inc., 2010 NSSC 458

SUPREME COURT OF NOVA SCOTIA Citation: Van Duren v Chandler Marine Inc., 2010 NSSC 458 Date: 20101216 Docket: Hfx. 250847 Registry: Halifax Between: Johannes A Van Duren and Cornelia J. Van Duren-Imhoe Plaintiff v. Chandler Marine Inc.

Defendants __________________________________________________________________ DECISION ON COSTS, ETC __________________________________________________________________ Judge: The Honourable Justice Kevin Coady Written Submissions: November 24 th , December 9 th & December 13 th , 2010 Decision: December 16, 2010 Counsel: John Shanks, for the plaintiffs Jessica White, for the plaintiffs D. Kevin Burke, for the defendant By the Court : [ 1 ] This trial extended over six days in January, 2010. A decision was released on April 13, 2010 which substantially favoured the Plaintiffs.

This Court awarded the Van Duren’s $77,260.10 (US) in special damages and $15,000(Canadian) in general damages. The total award was $92,260.10 without a currency conversion. This Court concluded that all special damages were either incurred, or will be incurred, in American dollars. The general damage award was the product of a Canadian court and, as such, was awarded in Canadian currency. I invited submissions from counsel respecting costs and currency adjustments.

The parties have been unable to agree on prejudgement interest and that issue is also before this Court. [ 2 ] I have been advised by the Defendant’s counsel that the Plaintiffs retained a $5,000.00 holdback at the time the vessel was delivered and that it must be deducted from the special damage award. I disagree for the reasons that I will address further along in this ruling.

COSTS: [ 3 ] The awarding of costs is entirely discretionary. Civil Procedure Rule 77.03(3) indicates that in normal circumstances costs shall follow the result. I can see no reason why the normal rules for the awarding of costs should not be followed in this case. I am satisfied that Tariff “A”, scale 2 (basic) applies. I award the Van Duren’s the set amount of $12,250 as well as $2,000 per trial day for a total cost award of $24,250. Counsel for the defendant urges me to deduct the $5,000 holdback from the $92,260.10 damage award. This would bring the award below $90,000 and the basic award to $9,750.

I decline to do that because the award was above $90,000 on the merits. The holdback is akin to holding funds in trust. [ 4 ] The Defendant also urges me to apply Civil Procedure Rule 77.07(1) and (2)(

a) and (

b) so as to decrease the award of costs. The Rule states as follows: 77.07(1) A judge who fixes costs may add an amount to, or subtract an amount from, tariff costs.

(2) The following are examples of factors that may be relevant on a request that tariff costs be increased or decreased after the trial of an action, or hearing of an application: (

a) the amount claimed in relation to the amount recovered; (

b) a written offer of settlement, whether made formally under Rule 10 - Settlement or otherwise, that is not accepted; (

c) an offer of contribution; (

d) a payment into court; (

e) conduct of a party affecting the speed or expense of the proceeding; (

f) a step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily; (

g) a step in the proceeding a party was required to take because the other party unreasonably withheld consent; (

h) a failure to admit something that should have been admitted. [ 5 ] In all of the circumstances I decline this invitation. In relation to 2(

a) I realize that the Plaintiffs were seeking much more than they collected. While that may be the case, such is not uncommon to the litigation process. When discussions fail, and a trial is required, it is the normal practice to claim for all possible damages however remote. I see nothing to suggest that the provision of this number stood in the way of settlement discussions or added to the length of this trial. [ 6 ] In relation to 2(

b) Defendants counsel submitted at page 4 of their brief:

Just before the commencement of trial, through discussion between counsel the defendant offered to agree on a quantification in an attempt to avoid an expensive trial. The defendant’s position was confirmed and conveyed to counsel for the plaintiff in an email dated January 13 th , 2010, a copy of which is attached.

As will be noted, the quantification offered by the defendant for future repair costs, past repair costs, and travel and other expenses exceeded what was awarded at trial. [ 7 ] The damage award of this Court was $92,260.10, the referenced email suggested a “quantification” of $120,859.00 exclusive of disbursements. I note that this figure includes four years of prejudgement interest in the amount of $14,944.00. It also includes costs in the amount of $5000.00 and survey costs in the amount of $7,515.00. This brings the pure damage award to approximately $93,400.00.

It was made on the same day the trial started. [ 8 ] Costs in favour of the Plaintiff are set at $24,250.00 Canadian. DISBURSEMENTS: [ 9 ] The Plaintiffs seek $7,038.89 in disbursements and the Defendant acknowledges that “they appear to be reasonable.” I make that award. EXPERT FEES: [ 10 ] The Plaintiff seeks a total of $21,431.94 in expert fees (US). This represents the costs of obtaining their expert reports and attendance in Nova Scotia for trial. I take no issue with the fact that Caribbean experts had to be retained and that has led to significant travel costs.

I also accept that the expert evidence was critical to this trial and to my ruling. [ 11 ] The Defendant argues two responses to these claims. One, they submit that the Plaintiff’s experts failed to establish that the hull was permanently compromised leading to a salvage situation. Two, they submit that one expert “charged six days at a travel rate for his one day in court” and that two of those days related to waiting for his travel documents. I accept the latter but not the former. I will limit his invoice to four of the six days charged. Otherwise, the experts costs are recoverable by the Plaintiff.

PREJUDGMENT INTEREST: [ 12 ] I have reviewed counsel’s submissions on point and will set out my conclusions in point form. · General Damages - Rate set at 2.5% for the period between taking possession of the vessel and the date of my decision. · Special Damages - Rate set at 5 % for the period between taking possession of the vessel and the date of my decision. · For these purposes, I will reduce the special damages to $35,000 to reflect that a substantial portion of the special damages has not yet been incurred by the Van Duren’s.

CURRENCY CONVERSIONS: [ 13 ] This related to the fact that the special damages and the expert witness fees were incurred in US dollars and, as such, must be expressed as an award in Canadian currency. I have reviewed both submissions and given there is no local authority on point, I direct that the conversion date will be the day immediately preceding the date on which the payment is made to the Plaintiff. J.